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Darwin Launch of Tampering with Asylum

Colin McDonald QC

Museums and Art Galleries of the Northern Territory
17 December 2003

Launch of Tampering with Asylum, University of Queensland Press, ISBN 0702234168

1. Let me start with an anecdote which, in light hearted terms, tells us what a mess immigration policy is in relating to refugee and asylum seeker issues.

2. I was delivering an invitation to tonight’s launch to Father Tim Brennan MSC at the Dioscesan headquarters in Darwin. I greeted Father Tim and handed him the invitation. He read the invitation, smiled and relayed the effect of a recent telephone conversation he had with Gibson Farmer the President of the Milikapiti Council at Snake Bay, Melville Island. Gibson Farmer was one of the three people who met some of the 14 Turkish Kurds on the beach at Melville Island on 4 November 2003. Tim made the telephone call and Gibson Farmer answered. The conversation went roughly like this:

“Good morning Gibson. Am I making an international call today”?
“Good morning Father Tim. Not Today. Thanks to the Senator, Melville Island is back as part of Australia”.

3. The reference, of course was to the bungled effort to purportedly excise Melville Island on 4 November, 2003 from Australia allegedly in the urgent need to protect Australians from people smugglers. The crazy excision exercise comes as the latest in a line of over-reactions to the arrival in Australia’s north of boat people. In this case just 14 boat people.

4. Asylum seeker and border protection issues have been headline news for over a decade. We in Australia have been flooded in recent years with the rhetoric of an exaggerated threat to Australia’s security by asylum seekers arriving by boat.

5. We, the people of Darwin, are no strangers to the phenomenon of desperate people arriving on our shores and in our territorial waters in small numbers seeking asylum in the wake of war, social collapse and political or other oppression. The Vietnamese were the first on our shores in the 1970’s. We took them in. Since the arrival of the Vietnamese there have been essentially three small waves of boat arrivals. The next arrivals were the Cambodians fleeing understandably, the return of Pol Pot in the late 1980’s to early 1990’s. Then, there was the Christian Chinese women who were fleeing the religious and the physical, biological persecution of forced sterilisation under the one child policy in China. More recently we have seen Iraqis, Afghans and Iranians also fleeing their ravaged countries at a time when, objectively, their countries can be described as oppressive and persecutory of particular sections of their citizens, especially women.

6. In August to September, 2001 the MV Tampa’s Captain Arne Rinnan picked up a despairing human cargo of asylum seeks in international waters north of Australia. He sought permission to dock and unload the asylum seekers at the nearest point of land, Christmas Island. What followed was a dramatic, brutal and now demonstrably flawed exercise of government, executive power.

7. Lives were put at risk. The law was twisted. The military was brought in. The press was muzzled. Intelligence services were misused. Australia defied the United Nations. We needlessly antagonised Indonesia. We hastily bribed poverty stricken Pacific nations in search of a harsh and rash solution. The result was a dark election victory for the Howard Government.

8. We now know that victory and the use of the Tampa incident was based on so much deceit, political spin and expediency. There has been a decay in both public language and public morality over the issue of asylum seekers arriving by boat in Australia. That is why the book “Tampering with Asylum” by Father Frank Brennan is so timely.

9. It was my fortune to attend Frank Brennan’s Sydney launch at Gleebooks on 26 November 2003 and to witness the huge turn out of people from so many different parts of the New South Wales community. The evening was stimulating, thought provoking and a great success.

10. Frank’s speech covered many policy issues, some human and moving anecdotes and wise observations. I noted this time not just Frank’s usual eloquence, but also passion and deep frustration with the tragic quagmire that Australian Government policy has become in relation to migration and the issue of asylum seekers. I relayed the news of this opening to Bob Collins. Bob Collins is the Territory’s most experienced and successful politician. At Bob’s haunt, the Cyclone Café in Parap we decided to form a “coalition of the willing” - willing that is to launch Frank’s book.

11. At his Sydney launch, Frank also addressed the recent arrival of the 14 Turkish Kurds at Melville Island and the Northern Territory Supreme Court habeas corpus proceedings on 6 and 7 November, 2003 in Darwin in which I was privileged to appear on behalf of Suzan Cox in her capacity as the Director of the Northern Territory Legal Aid Service against the Minister for Immigration. There was a sense of disbelief in the Sydney audience as Frank referred to the towing out to sea of people who had actually landed on shore and the flurry of Government gazetting on Melbourne Cup Day making Melville Island no longer part of Australia for migration purposes.

12. In that extraordinary case it became clear that on 4 November, 2003 the Government excised Melville Island and thousands of other islands across the entire north and north east and north west of Australia purportedly retrospectively in response to the landing of just 14 Turkish Kurds at Snake Bay. What was the problem?

13. In the case in the NT Supreme Court, the Solicitor General for the Commonwealth declined to state where the boat was being towed. The case was lost. We assumed it was being towed to one of the Pacific Solution countries. But if the Tampa asylum seekers’ litigation was a dark victory for the Government, then the towing out to sea and the dumping of the Minasa Bone in Indonesia was an even darker victory.

14. The judge presiding over the proceedings in Darwin was Justice Dean Mildren. In his judgment Justice Mildren found:

  • that Suzan Cox and Legal Aid solicitors had been “deliberately given the run around” by various DIMEA officers
  • attempts were made to prevent the media from coming anywhere near the vessel by the imposition of a 3,000 metre exclusion zone over Melville Island and closing the airport to prevent the media as well as others from getting to the island
  • His Honour concluded “Behaviour of this kind usually implies there is something to hide”
  • That the information provided by the only witness put forward by the Minister for Immigration, Mr Jonathon Eyers, was minimal:

Mr Eyers was asked specifically why Ms Cox’s request to seek access to those on board the vessel was not acceded to. He replied that it was normal procedure that unless a person requested legal assistance it is not provided. He said that he did not know whether any of the persons concerned had asked for legal assistance or not and did not know whether any of them had asked for asylum. Even allowing for the urgency under which this affidavit was sworn I found it incredible that the 1st and 3rd defendants’ principal witness could not answer these questions.

15. Later, after the case was lost, we found out the disturbing news that was not revealed in the hearing:

  • the boat was dumped in Indonesia, a non Refugee Convention Country, a fact which if known would have been a powerful consideration for the grant of habeas corpus
  • that the men had made applications across language barriers seeking asylum in the company of Commonwealth officers. These applications were ignored
  • the four Indonesian couriers were not even arrested even though the whole exercise of excising Melville Island and all the other islands was to tackle people smugglers
  • in a letter dated 13 November 2003 to the Minister for Immigration from the Deputy Secretary of DIMEA and the Chair of the People Smuggling Task Force, Ed Killesteyn, the real truth came out: In the letter, inter alia, said:

As you know the Government acted to excise Melville Island from the Migration Zone so as to prevent the people on board the vessel from making a valid protection visa application in Australia. Once Melville Island was excised effective from the beginning of the day, the vessel arrived and there was no possible way for the people to make a valid application for a protection visa under the Migration Act and Regulations.

16. Justice Mildren’s concerns that the Minister and the Government had something to hide were entirely justified.

17. Public language has decayed, transparency and honesty shredded in the politically driven rhetoric over those who arrive by boat seeking asylum. If you came by aircraft, it is, of course ok.

18. If you come by air and have money, that’s different. Readers of the NT News of Monday, 8 December 2003 had their week sweetened by a sub-heading “Overseas sextuplets fly over for Wiggles”. An accompanying photo of the happy, jumping sextuplets Dominick, Davis, Deidree, Danny, Dylon and Douglas Tjokrosotio captures their happy arrival in Melbourne from Jakarta. They were in Melbourne for a sell out Wiggles concert. Their obviously loving and indulgent father declined to say how much the trip was costing. Money, pleasure and entertainment brought the sextuplets by aircraft to their fanfare welcome to Australia. However, if they had been poor, fleeing persecution with despairing parents and arrived by boat they would be treated almost as pariahs.

19. So, in the turbulent seas of political exploitation of complex national and international humanitarian problems, it is refreshing to find an honest broker.

20. Frank Brennan’s book is measured and full of insight. He explores with an even hand the policy and humanitarian issues that have led to the disgraceful state of immigration policy concerning asylum seekers and Australia’s retreat from decency.

21. Australians will always be concerned most with the issues that affect ordinary Australians: health, education, housing, choices for our children to get a start and get ahead. But, we as a nation have also always been, and have until recent years, projected ourselves as being decent neighbours in our region and decent international citizens. That can no longer be said to be true as Frank Brennan’s book explores.

22. The politics of fear and political wedging has led to the most disturbing developments in our country, so disgraceful that they can be said to be un- Australian:

  • the mandatory detention of all asylum seekers including children
  • the use of razor wire, tear gas and batons in detention centres
  • the Pacific solution turning completely sour with asylum seekers now near death from hunger strikes
  • children sewing their lips
  • adults and children committing suicide in detention
  • an increasing sense of unease across the country.

23. Frank Brennan’s book should be read by all those who want to see beyond the political spin and by those who are concerned not just with Australia’s retreat from the Refugee Convention, but also those who are concerned with the now daily accounts of horror that are emerging from the gulags at Woomera, Baxter and Port Hedland to say nothing of our compounds in Nauru and Manus Island.

24. As one who can look back to the days when there wasn’t this mess, I can say it began with mandatory detention. Things got worse with the effective exclusion of the Courts from being able to review cases of injustice for asylum seekers. The trifecta of injustice was made complete with the introduction of temporary protection visas.

25. Frank’s book is a sober and compelling examination of how, in a balanced way, public policy can be restored to a level of some decency.

26. In his preface at page xiii of the book, Frank recounts this anecdote.

Walking through Sydney Airport one day, Walid, one of the Palestinian asylum seekers whom I had known in Woomera, greeted me. At first I did not recognise him. He had been granted a temporary protection visa (TPV). He was wearing new clothes and his bearing was confident and graceful. In Woomera, in the desert dust, detainess do not have or wear good clothes. They are often downcast and despairing. I then met Geoff Clark, Chairman of ATSIC, and asked if he would have time to meet Walid. He greeted him with the words, ‘You and I have the same minister.’ Philip Ruddock has been Minister for Immigration and Minister for Indigenous Affairs. At that moment, I realised that he was minister for everyone who is ‘other’ in contemporary Australia. Clark explained to Walid, ‘I have told our minister, “I don’t mind you making tough laws for boat people provided you make them retrospective.” Then pointing at me, he said, ‘This is the trouble in this country. This mob, they’re all boat people. But now they think they can run the show.

27. If the wise head counters in the Labor Party were listening at the moment, they would take heed of what is set out in this welcome book. There is a shift taking place in mainstream Australia. Australians are uncomfortable with being lied to.

28. When I read Frank’s book and I reflected for a moment and considered the disasters of the Tampa and the Minasa Bone and the daily atrocities in our detention centres I was reminded of the words of Victor Hugo: “There is one thing stronger than all the armies of the world, and that is an idea whose time has come”.

29. In Darwin tonight, in this Australia’s northern capital and in the most affected part of Australia in relation to the asylum seeker issue, I say that all the strength of the Howards, Ruddocks and Vanstones of this world cannot suppress an idea whose time has come. That idea is, quarantine and security clearance aside: No child, no child in Australia should be kept in immigration detention.

30. It gives me great pleasure to introduce and welcome Father Frank Brennan SJ and to launch his excellent book “Tampering with Asylum”.

31. Which brings me to the dilemma of what one does to officially launch a book. We are used at the launching of ships to see Prime Ministers’ and Defence Ministers’ wives plunging a bottle of bubbly against the hull of the new vessel before it slides down the slipway. But what about the launching of a book?

32. Fortunately, this is the Museum and Art Galley of the Northern Territory. And this Museum has a ghost, the ghost of its inspired and colourful founding director, Doctor Colin Jack-Hinton. I feel his presence sometimes as I walk through the galleries and halls of this place. Doctor Colin was an Indonesionist, familiar with that great country’s magnificent diversity of art, culture and aesthetics. At the opening of art exhibitions in Indonesia and Indonesian cultural events in this Museum, Doctor Colin borrowed from the rich traditions of Indonesia and employed a Javanese or Balinese Gamelan Orchestra Gong. So there is a Javanese Gamelan gong here tonight and the ghost of ‘Pak Jengot’ is with us!

33. So it is with great pleasure and in a rich tradition that we launch this book “Tampering with Asylum” and give Frank Brennan the gong.

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